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Expansion Plans for Foreign Student Work Authorization Revealed

Some insight into a forthcoming proposal expanding the government’s optional practical training (OPT) program for foreign students of U.S. universities was revealed to include up to six years of employment authorization post-graduation.

As of November 2013, about 100,000 of the approximately 1 million foreign students in the United States were approved to participate in OPT, which allows foreign students to obtain temporary work in their areas of study during and after completing an academic program. Immigration and Customs Enforcement (ICE) is responsible for regulating the program, including certifying schools, monitoring foreign students and enforcing immigration laws for those that fail to comply.

Currently, the OPT program allows foreign graduates of U.S. colleges and universities to work in the U.S. for 12 months, or up to 29 months if they have a science, technology, engineering or mathematics (STEM) degree.

According to recently revealed details of the proposed rule to be released later this year, STEM graduates would be eligible to receive up to two 24-month extensions under OPT, in addition to the initial 12-month period, and students graduating without a STEM degree would be eligible for one 24-month extension if they received a prior degree in a STEM field.

The plans were unveiled in a June 8, 2015, letter written by Sen. Charles Grassley, R-Iowa, to Secretary of Homeland Security Jeh Johnson. The senator expressed concern about the plans and urged Johnson to reconsider “expanding the program without adding adequate controls and safeguards.”

The expansion of OPT was first announced in November 2014 as part of President Barack Obama’s executive action on immigration, but details about the plans were not known until ICE officials briefed senate staffers May 28, 2015.

Grassley’s Concerns

Calling the plans “irresponsible and dangerous,” Grassley referenced a March 2014 Government Accountability Office (GAO) report charging that the program is inefficient, susceptible to fraud and lacking in oversight.

The report found that foreign students, sometimes with the assistance of school officials, were abusing the program to acquire unauthorized work. It also found that ICE was not adequately overseeing the program and did not have adequate monitoring mechanisms in place to ensure schools and students were following ICE regulations. Violations included students accruing too much unemployment and failing to complete the program within a certain amount of time, and schools failing to ensure that students were engaging in work that was in their field of study.

“Instead of addressing the weaknesses of the OPT program … it appears the agency is intent on doubling down on the misguided policies that triggered the GAO report … in the first place,” Grassley said. “Putting aside the legality of the OPT program, which I have questioned, I am greatly troubled by the proposal to lengthen to a full two years the OPT-STEM extension period.”

Grassley called the proposed six-year OPT-STEM extension period a “de facto shadow H-1B program” that allows employers to get around the annual cap on H-1B visas, as those also provide work authorization for six years.

“OPT is meant to be a temporary training program, not as a bridge to a longer-term work visa or a way for employers to hire cheaper foreign labor in lieu of Americans or foreign workers in visa programs with prevailing wage requirements,” he said.

Grassley’s letter revealed that ICE is considering requiring employers to certify that they aren’t using the OPT program to displace U.S. workers. However, “there does not seem to be any certification contemplated that the employer has recruited or tried to find U.S. workers who may be at least equally qualified as the foreign students,” nor are substantive wage requirements being considered “to ensure that employers are not exploiting foreign students and thereby driving wages down for U.S. workers,” he wrote.

Recommended Improvements

Grassley asked for a status update on whether the GAO’s recommendations have been implemented and urged ICE to:

Increase oversight and monitoring of schools, foreign students and their employers.

Ensure that employment is secured before OPT is granted.

Ensure that foreign students report changes in employment.

Ensure that designated school officials notify the agency about students’ whereabouts, including the employer’s name and location.

Require that employers hiring students through OPT use the E-Verify electronic employment eligibility system.

Require OPT employers to pay a “reasonable wage.”

Require OPT employers to pay a fee equal to the wage savings from not having to pay FICA payroll taxes for OPT workers.

More closely bind OPT to the student’s course of study.

Establish avenues for OPT workers to report employer abuse.

Place a numerical cap on the number of foreign students who can obtain work authorization.